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Civil Liberties Nadine Strossen New York Law School digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1993 Civil Liberties Nadine Strossen New York Law School Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Recommended Citation 4 Geo. Mason U. C.R. L.J. 253 (1993-1994) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. CIVIL LIBERTIES Nadine Strossen* As the President of the American Civil Liberties Union, I am often asked what exactly the term "civil liberties" signifies. It is not a legal term of art. Having examined United States Supreme Court opin- ions in the civil liberties area, and having reflected upon the civil liber- ties perspective that pervades the ACLU's work, I have concluded that the concept of "civil liberties" essentially consists of five basic principles: 1) all human beings have inherent, fundamental rights; 2) rights may be restricted only when necessary to promote an extremely important countervailing interest; 3) individual liberty serves as a check on democratic or majoritarian de- cision-making power; 4) federal courts - in particular, the Supreme Court - have a special responsibility to protect individual and minority group rights; and 5) rights are indivisible - i.e., all rights for all people are mutually interdependent. These five broad principles provide an underlying, unifying theme for all of the American Civil Liberties Union's work. They tie together the ACLU's various efforts on a wide range of issues that might other- wise seem to have little in common - from A to Z, or from abortion to zoning. These five broad principles also constitute a major theme in U.S. constitutional law - in particular, the Supreme Court's decisions that interpret and enforce the Bill of Rights. The first fundamental civil liberties principle - that all human beings have inherent, fundamental rights - is the central idea underly- ing our entire system of government. It is set out in clear, simple, pow- erful terms in our government's founding document, the Declaration of Independence: "[AIll [persons] are created equal [and] .. .are en- * Professor of Law, New York Law School; President, American Civil Liberties Union. This essay is based on the 1993 McBride Lecture, which Professor Strossen delivered at Simpson Col- lege in Indianola, Iowa on October 5, 1993. For research assistance, the author gratefully ac- knowledges Donna Wasserman and Thomas Hilbink. CIVIL RIGHTS LAW JOURNAL [Vol. 4:2 dowed by their Creator with certain unalienable Rights . .. [T]o se- cure these rights, Governments are instituted . "..."I This language reflects the "natural rights" philosophy of the eighteenth-century En- lightenment, the notion that people are born with rights simply by vir- tue of being human.2 In modern-day parlance, we usually describe the same concept by referring to inherent or fundamental "human rights." We have these rights because we are human beings, and not because the government gives them to us. Neither the government nor the government's laws create rights; all persons already have rights merely by virtue of our humanity. Accordingly, the role of government and of laws is not to grant rights, but rather, to protect them. The great Supreme Court Justice Louis Brandeis captured these notions in the following, much quoted declaration: "Those who won our independence believed that the final end of the state was to make men free." Consistent with the natural rights philosophy of our nation's foun- ders, our fundamental law, our Constitution, did not create rights. Rather, it created a structure of government that was designed in large part to secure pre-existing natural rights. This central governmental function was clearly stated in the Constitution's Preamble: "We the People of the United States, in Order to . secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."" The special importance of individual liberty in our pantheon of na- tional values was underscored by the addition to the Constitution, only four years after it was ratified, of the Bill of Rights. A number of states conditioned their ratification of the Constitution on the prompt addition of these explicit liberty-protecting guarantees.' Even those who opposed the Bill of Rights did not do so because THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 2 CHARLES G. HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS 54 (1930). Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). See also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 111 n.40 (1873) (Field, J., dissenting) (quoting 1 SHARSWOOD'S BLACKSTONE 127 n.8) ("Civil liberty, the great end of all human society and gov- ernment, is that state in which each individual has the power to pursue his own happiness accord- ing to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws." (emphasis added)). ' U.S. CONST. pmbl. * Leonard W. Levy, The Bill of Rights, in THE AMERICAN FOUNDING: ESSAYS ON THE FOR- MATION OF THE CONSTITUTION 295, 313 (J. Jackson Barlow et al. eds., 1988). 1994] CIVIL LIBERTIES they rejected the notion that the government should protect basic human rights. To the contrary, there was a consensus about the govern- ment's duty to respect and preserve rights, and a disagreement only as to the necessary or desirable means for effectuating this duty. Oppo- nents of the Bill of Rights saw it as at best unnecessary and at worst counterproductive in terms of fostering rights. The argument that the Bill of Rights was not necessary flowed from the fact that the Constitu- tion had created a government with only the limited powers that it spe- cifically enumerated, and these powers did not extend to suppressing individual rights. The argument that the Bill of Rights could actually be counterproductive reflected the related fear that the enumeration of certain rights could give rise to a negative inference about unenumer- ated rights - namely, that they were not protected. Given the limited nature of the powers specifically vested in our national government, there is considerable force to the view that the Bill of Rights would not have been necessary as a bulwark against gov- ernmental infringement on freedom. Nevertheless, significantly, the founding generation chose to err on the side of caution in ensuring that the new government would not infringe on individual liberty, by provid- ing the reinforcement added by the Bill of Rights. Our founders similarly erred in favor of over- rather than under- protecting liberty by including the Ninth Amendment in the Bill of Rights, to avoid the potential negative inference that some feared the Bill of Rights might create. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be con- strued to deny or disparage others retained by the people." 7 In light of this history, I never understand how anyone can seri- ously argue that certain rights cannot be protected just because they are not explicitly set out in the Constitution. This is an argument that is often made, for example, about the constitutional right to privacy, including reproductive freedom. One can certainly make good faith ar- guments in favor of limiting such rights, but I fail to see how one could credibly argue that these rights completely lack any protection merely because they are not expressly set out in the Constitution. Every Supreme Court Justice has in fact recognized that the Con- stitution does protect some rights that are not expressly set forth - 6 Id. at 310-11. ' U.S. CONST. amend. IX. CIVIL RIGHTS LAW JOURNAL [Vol. 4:2 even the most conservative Justices, and even those who say that they interpret the Constitution only according to its plain language. Many people are surprised to learn that a number of rights that the Supreme Court has long and unanimously held to be constitutionally protected, without any controversy, are not expressly guaranteed by the Constitu- tion's text itself - for example, the right to vote, the right to interstate travel, and freedom of association. Accordingly, the real issue is not whether the Constitution secures unenumerated rights, but rather, which unenumerated rights it secures. Our constitutional system's robust theory of inherent individual rights, and of government's responsibility to protect them even against pressing countervailing community concerns, is underscored by the broad, unqualified language in the Bill of Rights. The Bill of Rights does not contain any express limitations upon the enumerated rights in order to preserve public safety or order, or some other community con- cern. In contrast, the corresponding provisions in the constitutions of other nations, and of international human rights agreements, do con- tain such explicit limitations. For example, the free speech clause of our Constitution's First Amendment provides: "Congress shall make no law ...abridging the freedom of speech, or of the press . ." In contrast, the free speech guarantee in the Canadian Charter of Rights and Freedoms - along with all rights guarantees in that document - is preceded by the fol- lowing qualifying language: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." 9 Similarly, the International Covenant on Civil and Political Rights contains the following express limitation upon its counterpart to the First Amendment's free speech clause: "The exercise of the rights provided for . may ... be subject to certain restrictions ...as are provided by law and ... necessary [ffor respect of the rights or reputations of others [and] [flor the pro- tection of national security or of public order ..
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